Neutral Citation: 1996 ONICDRG 53

File No.: A-013497

ONTARIO INSURANCE COMMISSION

BETWEEN:

JUNE BOOK

Applicant

and

BERTIE AND CLINTON MUTUAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, June Book, was injured in two motor vehicle accidents which occurred on February 27, 1993 and April 5, 1993. Ms. Book applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672.¹ Weekly income benefits were terminated on April 19, 1993, when the Applicant returned to work. On August 20, 1993, Ms. Book's temporary job was terminated, at which time she applied for further weekly income benefits. The parties were unable to resolve their dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to weekly income benefits pursuant to section 12 of the Schedule, subsequent to August 20, 1993, and if so, for how long?

2. Is the Applicant entitled a medical rehabilitation case manager pursuant to section 6(1)(c) of the Schedule?

3. Is the Applicant entitled to the cost of active physiotherapy treatments pursuant to section 6(1)(a) of the Schedule?

4. Is the Applicant entitled to a special award pursuant to section 282(10) of the Insurance Act?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. The Applicant is not entitled to weekly income benefits subsequent to August 20, 1993.

2. The Applicant is not entitled to a medical rehabilitation case manager.

3. The Applicant is entitled to active physiotherapy treatments for a period of four months.

4. The Applicant is entitled to a special award in the amount of 10 per cent of the cost of the physiotherapy treatments.

5. The Applicant is entitled to her expenses incurred in the arbitration.

Hearing:

The hearing was held in Hamilton, Ontario, on February 12, 13 and 14, 1996, before me, M. Guy Jones, arbitrator. The proceedings were recorded by court reporters Elaine Ritsema and Margaret Cunningham of Mark Nimigan, Special Examiner.

Present at the Hearing:

Applicant: June Book

Applicant's Representative: Allen Wynperle Barrister and Solicitor

Insurer's Representative: Grant E. Black Barrister and Solicitor

Insurer's Officer: Phillip Huntley

Witnesses:

June Book

Phillip Huntley

Dr. Thomas Zeyl

Dr. M. Rathbone

Dr. Brent Saigeon

Dr. Fred Langer

Exhibits:

The parties filed 30 exhibits.

Evidence and Findings:

Facts:

The Applicant, Ms. Book, was injured in two motor vehicle accidents from which the issues in this arbitration arose. The first occurred on February 27, 1993 and the second on April 5, 1993.

In the first accident, Ms. Book was driving on Highway 20 at approximately 80 km per hour when a car pulled out from the South Grimsby Road to make a left turn in front of her. Although she was wearing a seatbelt at the time, Ms. Book's head hit the windshield as did her hands. In addition, her right knee struck something. She may have lost consciousness briefly. As a result of this accident, Ms. Book had cuts to her forehead which required numerous stitches, a sore neck and shoulders, a sore right knee, as well as a broken right baby finger and left index finger. An open reduction of the right baby finger and closed reduction of the left index finger was performed on March 9, 1993.

Ms. Book was off work from February 27th until the day of her second motor vehicle accident, April 5, 1993, with the exception of a couple of days when she went into work prior to the operation on her hands.

On April 5, 1993, Ms. Book was returning to work when the car in which she was a passenger was struck by a passing car. Ms. Book once again struck her head on the windshield, causing cuts which again required stitches. In addition, she broke some ribs on her left side and apparently aggravated the injuries to her knee and neck.

Employment Situation:

In the year prior to the first accident, Ms. Book had been a returning officer for Elections Canada and a secretary for C.H.C.H. Television in Hamilton. Ms. Book had completed her duties at Elections Canada for the time being, prior to the accidents. This job became active again in or about May of 1993. Ms. Book was active as a returning officer throughout the remainder of 1993 and she received full pay from Elections Canada for her work. I find the essential tasks of this job included interviewing and hiring election workers, training new employees, supervising employees and making sure that various materials were available for distribution. In addition, she performed the role of ensuring the orderly handling of the election process. While Ms. Book testified that her assistant performed a great deal of the work that she would have otherwise performed, she was fully paid for her work and I am satisfied that she was able to carry out the essential tasks of her employment.

The question of whether she was, and is, able to carry out the essential tasks of her employment as a secretary at C.H.C.H. Television is a far more difficult one. Prior to the accidents, Ms. Book had been a secretary at C.H.C.H. Television for approximately one and a half years, filling in for other secretaries on a temporary basis. As a result of her testimony and the job description submitted as Exhibit 1, I find that the essential tasks of her employment were:

• typing

• shorthand

• answering the telephone and taking messages

• handling mail

• use of fax machine and photocopy machine

• ordering supplies

• occasional telephone switchboard relief

• maintaining various office records

It would appear that the typing took up a large percentage of her time and she often typed for one to two hour stretches at a time.

At the time of the first accident, Ms. Book was replacing another worker who was off work. Ms. Book, to her credit, came in and tried to work for a few days before her fingers were operated on after the first accident. As mentioned above, she was returning to work for the first time on April 5, 1993 when she had the second motor vehicle accident. In spite of broken ribs and the other injuries she suffered in the second accident, she returned to work on April 19, 1993. She continued to work as a secretary at C.H.C.H. Television until the job came to an end, as planned on August 20, 1993.

At the hearing, Ms. Book claimed that one of her supervisors, Mr. Wolf Venne, told her that a permanent secretarial position was going to be created and that there was a 'high probability" that she would get the job. Ms. Book apparently applied for the permanent secretarial position but did not get it. She claims that she did not get the job because her neck and shoulder injuries as well as her finger injuries made her less effective and unable to work competitively as a secretary. She also maintains that while she has applied for numerous secretarial positions since August 20, 1993, she has not been hired and maintains that this is because her neck, shoulder and finger injuries have disabled her so that she can not carry out the essential tasks of a secretary at a level that would make her employable.

Medical Evidence:

As often in the case of injuries of this nature, there was disagreement amongst the doctors as to the Applicant's ability to perform the essential tasks of her pre-accident employment. The Applicant's family doctor, Dr. Thomas Zeyl, who testified at the hearing and whose reports were filed as exhibits, was of the opinion that Ms. Book was unable to work as a secretary due to the continuing soft tissue injuries to her neck and shoulders, as well as ongoing stiffness and soreness in her fingers.

A chiropractor, Dr. B. Saigeon, also testified on behalf of Ms. Book and his report was filed as an exhibit. He too was of the view that Ms. Book was unable to perform the functions of a secretary because of ongoing soft tissue injuries. I note that he did not begin to see Ms. Book until June 17, 1994, well over one year after the accidents. He has continued to see and treat her approximately two to three times per week since then, despite minimal, if any, improvement in her condition.

Dr. M. Rathbone, a neurologist specializing in pain management, also testified on behalf of the Applicant and his reports were filed. Dr. Rathbone was of the view that Ms. Book's injuries to her neck, shoulders and fingers made her unable to continue to work as a secretary. He placed special emphasis on the fact that the Applicant had pre-existing degenerative disc disease in her neck and this explained her ongoing problems with neck pain.

I note that while Dr. Rathbone took the position that the condition of her fingers made it impossible for her to work as a secretary, he was unaware that she performed those duties between April and August 1993, nor was he aware of the circumstances of her leaving that job in August of 1993.

At the request of the Insurer, the Applicant was seen by Dr. Fred Langer, an orthopaedic surgeon, on December 12, 1995. Dr. Langer's reports were filed and he testified at the hearing. Dr. Langer felt that the Applicant had suffered mild soft tissue injuries to her neck, shoulder and knee and that the broken fingers had healed to a point where she was quite capable of performing the tasks of a secretary as of the summer of 1993. In his examination, Dr. Langer placed considerable emphasis on the lack of objective findings in arriving at his conclusions.

In light of the conflicting medical opinions in this case, I have referred to the clinical notes and records filed by the doctors in order to determine the complaints of injuries made to the doctors.

My review of these materials leads me to conclude that the neck, shoulder and finger problems which the Applicant claims kept her from working as a secretary, were of a relatively minor nature.

The review of Dr. Zeyl's clinical notes reveals, for example, that no references to any neck or shoulder complaints were made to him until the January 26, 1994 visit, some 11 months after the first accident and nine months after the second accident. Dr. Zeyl's notes also show that he did perform a general neurological examination of the Applicant on March 22, 1993. On cross-examination, Dr. Zeyl advised that he would have, in such an examination, checked the Applicant's neck for full rotation of movement. His notes indicate the neurological exam was normal. I also note that following the second accident, Ms. Book did not see her family doctor until May 18, 1993, or approximately six weeks afterwards. In addition, she did not mention her neck pain or problems with her fingers to Dr. Zeyl at that time.

A review of the report of Dr. J.Y. Mah,² an orthopaedic surgeon who saw the Applicant on March 3, 1993, indicates that an examination of her cervical spine demonstrated no localized tenderness and a full range of movement.

The report of Dr. V. deBeer,³ another orthopaedic surgeon who treated Ms. Book, is found in the clinical notes and records of Dr. Zeyl. The report, dated September 13, 1993, deals only with complaints regarding her right knee and left foot. Dr. deBeer concluded that the Applicant had suffered some very minimal soft tissue strains to her left foot and right knee which were completely resolved. It is interesting to note that the Applicant made no complaints of ongoing problems with her neck or fingers to Dr. deBeer.

I am further strengthened in my opinion that the Applicant's ongoing problems with her neck, shoulders and fingers were of a fairly minor nature in light of the report of Dr. P. Ansari, an orthopaedic surgeon who treated Ms. Book and whose report was filed with Dr. Zeyl's clinical notes and records.⁴

His report of April 19, 1994 indicates that when he saw her on that day, her main complaint was of low back pain, which had arisen approximately one year after the two motor vehicle accidents. In addition, she complained of ongoing right knee and left foot problems. Dr. Ansari stated that she had excellent movement and function of her right hand and that while she complained of some feelings of stiffness in the function of her left index finger, clinically the movements were quite normal. I also note that the Applicant made no complaints of ongoing neck and shoulders problems.

Finally, I have reviewed the clinical notes and records of Dr. R.S. Patterson, the plastic surgeon who performed the operation on Ms. Book's hands. I note that on Ms. Book's last visit to that doctor, on June 15, 1993, Dr. Patterson noted full rotation of the fingers with improving strength and occasional stiffness and swelling. I also note that while Dr. Patterson invited her to return for a re-assessment in six months, she has in fact, not seen him since June 1993.

Counsel for the Insurer urged me to find that Ms. Book's right knee problem pre-dated the accident and that it was not affected by the motor vehicle accident. I accept that the Applicant had a pre-existing right knee problem and that she saw doctors for approximately three months before the first motor vehicle accident. I also accept that she was not particularly forthcoming about the pre-existing problem. Upon reviewing the evidence, I find that the motor vehicle accidents, especially the February 27, 1993 accident, aggravated that condition somewhat. In light of the fact that Ms. Book is not saying that this has caused her to be unable to work as a secretary, I need not comment further upon it.

Counsel for the Insurer also took the position that the neck and shoulder injuries were not related to the accident as the complaints of neck pain arose too late. While Ms. Book's complaints to her family doctor about her neck and shoulders were made very late, she appears to have complained of the neck injury to Dr. Mah in early March of 1993. I find that Ms. Book injured her neck in the first motor vehicle accident and aggravated it somewhat in the second motor vehicle accident. These were, however, only minor injuries.

I am reinforced in my view that the Applicant's injuries to her neck and fingers did not disable her from performing the essential tasks of a secretary beyond April 19, 1993 by a number of other factors which came to light during the course of the hearing.

On December 21, 1993, shortly after finishing her full-time employment with Elections Canada, Ms. Book applied for and received unemployment insurance benefits. Interestingly, Ms. Book applied for regular unemployment insurance benefits and failed to disclose that she was disabled in the application form. The application provides a section indicating that a number of programs and services are designed for persons with disabilities. Ms. Book did not fill in this section.

Question 27 of the application inquires how many hours and days Ms. Book worked normally each week. She indicated she worked 72 hours a week.

Question 36 of the application was filled in by Ms. Book and indicates that she worked as a secretary until August 1993 and that the reason she left was that her assignment was complete. In response to question 44, "Are you ready and willing to work immediately?" Ms. Book answered, "yes." In addition, in response to question 45, when she was asked what type of work she was looking for, she responded that she was looking for a secretarial, accounting or administration position.

In addition, every two weeks during the year that Ms. Book received unemployment insurance benefits, she had to fill in and sign a card wherein she indicated that she was ready, willing and capable of work each day.

In response to questions as to why she would sign such a form when she claimed that she was unable to perform her essential tasks as a secretary, the Applicant indicated that she was willing to try to be a secretary and that her skills simply were not sufficient to work competitively as a secretary following the accidents. I am concerned that the Applicant called no witnesses from C.H.C.H. Television to testify about her job performance prior to the motor vehicle accident and after, between April and August of 1993. It is equally disturbing that the Applicant called no one from C.H.C.H. Television to say why she did not get the permanent position at C.H.C.H. Television in August of 1993. Ms. Book simply stated that prior to her motor vehicle accidents, her typing speed was about 60 words per minute and she now guessed that it was 40 to 50 words per minute. She called no witnesses to testify in this regard and produced no test results to back up her statements. The only other evidence on her pre-accident typing speed was hearsay evidence from Mr. Huntley, the insurance adjuster, who testified that he had been told by a paralegal working in the Applicant's law firm that her typing speed before the accident had been tested at 51 words per minute. What is clear is that she was able to work from April to August 1993 as a secretary at C.H.C.H. Television, and the time sheets⁵ indicate she worked 32 to 33 hours each week during that time frame.

In light of all the above, I find that while Ms. Book did suffer injuries to various parts of her body in the two motor vehicle accidents, she was not disabled from performing the essential tasks of her employment after April 19, 1993 when she returned to work. This is not to say that Ms. Book did not or does not have pain, as I believe that she does. However, I am of view that her pain is not so great as to disable her from performing the essential tasks of her employment as required by section 12 of the Schedule.

Need for Rehabilitation Case Manager:

At the hearing a considerable period of time was spent on the question of whether Ms. Book should be entitled to the services of a medical rehabilitation consultant or manager, pursuant to section 6(1)(c) of the Schedule. Numerous arbitration decisions have held that in order to be entitled to such a benefit, the need must arise as a result of the motor vehicle accident, and it must be reasonable and necessary for the applicant's treatment or rehabilitation. Section 6(4) of the Schedule also provides that the insurer may require a signed statement from the applicant's qualified medical practitioner stating that the expense is necessary for the insured person's treatment or rehabilitation.

While there was initially some confusion amongst the parties, at the hearing it became clear that the Applicant was requesting a case manager for medical rehabilitation rather than vocational rehabilitation. A letter dated January 26, 1994 from her family doctor, Dr. Zeyl, confirmed that he felt that a case manager should be appointed, for rehabilitation purposes, to oversee her treatment and benefits.⁶ In addition, the chiropractor, Dr. Saigeon, in his report of February 2, 1996, indicated that a rehabilitation case manager was a way for Ms. Book's progress to be monitored on a regular basis, and to determine the effectiveness of the treatment over a period of time.⁷

At the hearing the doctors repeated their views regarding the need for a case manager. Dr. Langer expressed the view that in light of the Applicant's relatively minor injuries and her substantial recovery, as well as the fact that there was little need for further treatment, he did not think a case manager was required.

I also note that Mr. Phillip Huntley, the adjuster assigned to this case by the Insurer, was initially of the view that a case manager might be helpful, although he later changed his view in this matter.

Upon reviewing all the evidence, I am of the opinion that in this particular case, a medical rehabilitation case manager is not reasonable or necessary for the treatment or rehabilitation of the Applicant. I note that the first request for such a case manager arose January 26, 1994 from Dr. Zeyl after the Applicant apparently brought this matter to his attention. By this time, the Applicant had visited Dr. Zeyl approximately four or five times in the 11 months since the initial accident. She had returned to her secretarial position until August 1993 and then had worked full-time for Elections Canada. By January 26, 1994, the remaining entries in Dr. Zeyl's notes essentially concerned the soft tissue injuries, and the only treatment to be completed was some physiotherapy and massage treatments. It was approximately another five months before any chiropractic treatments began. A case manager in this particular case would not, in my opinion, reasonably have assisted in Ms. Book's treatment or rehabilitation. Ms. Book's treatment plan at that point involved occasional visits to the family doctor, physiotherapy, massage treatment and later chiropractic treatments. Coordination of these treatments could and should have been easily handled by the family doctor. Medical rehabilitation case management is appropriate in certain cases. However, in my view it is not reasonable or necessary in relatively minor cases where the family doctor can easily make the decisions as to what is most appropriate, and follow the patient's progress.

Active Physiotherapy:

In January 1994, the Applicant requested active physiotherapy for her injuries. This benefit is available pursuant to section 6(1)(a) of the Schedule, the "pay now, dispute later" subsection. Nonetheless, the Insurer requested a letter from a doctor indicating the need for such treatment. Ms. Book complied with this request and received a letter from Dr. Rathbone, dated January 20, 1994, requesting active physiotherapy. Ms. Book forwarded this letter to the Insurer on January 24, 1994. She asked that the Insurer contact the clinic that she wished to attend, as that clinic had requested a letter from the Insurer stating that they would pay the account. Unfortunately, the Insurer did not send such a letter and Ms. Book did not receive the active physiotherapy as requested.

The need for such active physiotherapy was supported by Dr. Rathbone, Dr. Zeyl and the chiropractor, Dr. Saigeon. Dr. Langer was of the view that while it might have been useful earlier on, it would not be useful at the date of the hearing. Dr. Rathbone felt that while it would have been more beneficial earlier, it would still be worthwhile for Ms. Book to receive three to four months of active physiotherapy now.

I accept the view of Dr. Rathbone. Accordingly the Insurer should pay for four months of active physiotherapy treatment. After that time the parties should reassess the situation and hopefully agree whether or not further active physiotherapy is warranted. In the event that the parties are unable to agree on the need for further treatment, I remind the Insurer that section 6(1)(a) of the Schedule, is a "pay now, dispute later" obligation.

Special Award:

Ms. Book is requesting a special award pursuant to subsection 282(10) of the Insurance Act which states:

(10)--If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the No-Fault Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest in all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

The purpose of this section is to penalize unreasonable conduct. In this particular case, counsel for the Applicant has submitted that the failure by the Insurer to hire a case manager and the failure to pay for active physiotherapy treatments at an early date constitutes conduct requiring that a special award be made.

I have decided that a case manager need not have been appointed in this case. However, with regard to the failure to provide payment for active physiotherapy, I am of the opinion that the Insurer's conduct was unreasonable. As mentioned above, the physiotherapy treatments are "pay now, dispute later" benefits, payable pursuant to section 6(1)(a) of the Schedule. Ms. Book, at the Insurer's request, obtained a short letter from Dr. Rathbone confirming that active physiotherapy was required. She forwarded this letter to the Insurer on January 24, 1994. Despite Ms. Book's written request that the Insurer confirm with the physiotherapy clinic that the company would pay the account, the Insurer did not do so. Accordingly, Ms. Book did not receive the physiotherapy.

As mentioned above, the evidence at the hearing was that the physiotherapy certainly would have been useful early on and still is of some value.

Counsel for the Insurer argued that since Ms. Book did not take the treatment and did not submit any bills, no monies were owing. Therefore, pursuant to section 282(10) of the Insurance Act, since no monies were owing, no special award can be made. I am unable to agree with this submission. Arbitrator Baltman in George David Quarrington and Jevco Insurance Company, July 17, 1995, OIC File No. A-010804, dealt with the issue of the ability to make a special award in a situation the insurer had failed to make a section 6(1)(a) payment and accordingly did not incur the expense. She stated:

Subsection 268(8) of the Insurance Act, addresses the payment of benefits pending the resolution of a dispute:

268(8).--Where the No-Fault Benefit Schedule, provides that the insurer will pay a particular No-Fault benefit pending resolution of any dispute between the insurer and an insured, the insurer shall pay the benefit until the dispute is resolved.

The Applicant submitted that violation of the "pay pending dispute" provision supported a special award. The Insurer's response was that subsection 6(7) only applies in situations where the applicant has actually incurred an expense. I disagree. Subsection 6(7) refers to expenses "described"; nothing in the wording limits its application to expenses actually paid for by the Applicant. Had that been the legislative intent, it would have been a simple matter to restrict the wording in the subsection to "an expense incurred," or other similar language.

Section 282(10) of the Insurance Act allows an award of "a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award." In my view, Ms. Book was entitled to the benefit on January 24, 1994, when she requested it. The fact that the exact amount cannot be quantified because the expense has yet not been incurred does not mean she is not entitled to the award.

Dr. Rathbone has recommended four months of active physiotherapy treatment and I have agreed with his recommendation. Accordingly, I am making a special award amounting to 10 per cent of the cost of the active physiotherapy treatments. If the parties are unable to agree as to the actual amount, I may be spoken to in this regard.

Expenses:

The Applicant is entitled to her expenses of the arbitration pursuant to section 282(11) of the Insurance Act. In the event that the parties cannot agree as to the total amount of expenses, a party may apply to the Registrar for assessment of the expenses.

Order:

1. Ms. Book is not entitled to weekly income benefits subsequent to August 20, 1993.

2. Ms. Book is not entitled to case management for medical rehabilitation purposes.

3. Ms. Book is entitled to the cost of active physiotherapy treatment for a period of four months.

4. Ms. Book is entitled to a special award amounting to 10 per cent of the cost of four months of active physiotherapy.

5. Ms. Book is entitled to her expenses of the arbitration.

April 17, 1996

M. Guy Jones Arbitrator

Date

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994. In this decision, the term 'Schedule" will be used to refer to Regulation 672.
2. 2See Exhibit 8, Tab 1, page 76.
3. 3Exhibit 8, Tab 1, page 71.
4. 4Exhibit 8, Tab 1, page 54.
5. 5Exhibit 11.
6. 6Exhibit 10, Tab 3, page 1.
7. 7Exhibit 18.